[1] In this case we are concerned with the question of whether sections 6(3),
6(4), 6(5), 6(6) and 6(7) of the Gambling Act, 51 of
1965 (“the
Act”) are inconsistent with the provisions of the Constitution of the
Republic of South Africa, Act 200 of
1993 (“the Constitution”).
They are challenged on the ground that they are in breach of section 25(3) of
the Constitution
which guarantees the right to a fair trial and, more
particularly, on the ground that they are in breach of section 25(3)(c) which
protects the presumption of innocence and the right to remain
silent.

[2] Mr G J Scagell, Mr C J Minard, Ms C Mitchell and Mr C J Simon, the
applicants, were jointly charged in the Cape Town Magistrates’
Court with
having permitted the playing of a gambling game in breach of section 6(1) of the
Act. That section provides as follows:

Subject to the provisions of subsection (2), no person shall permit the
playing of any gambling game at any place under his control
or in his charge and
no person shall play any such game at any place or visit any place with the
object of playing any such game.

Three separate but related offences are created by section 6(1). The first
prohibits people in control or in charge of a place from
permitting the playing
of gambling games at such place, the second prohibits the playing of such games
at any place and the third
prohibits visiting any place with the object of
playing a gambling game. The applicants were charged with the first of these
offences.

[3] At the commencement of the trial, the applicants feared that, in order to
facilitate the proof of the charges, the prosecution
would rely upon the
provisions contained in section 6(3), 6(4), 6(5), 6(6) and 6(7) of the Act.
Accordingly, the applicants applied
to the magistrate to postpone the criminal
proceedings against them in terms of section 103(3) of the Constitution so that
they could
apply to the Supreme Court for a section 103(4) order permitting them
to approach this Court for an order declaring the challenged
provisions of the
Act to be invalid for inconsistency with the Constitution. After a
consideration of the provisions of the Constitution,
the magistrate decided that
it was in the interest of justice to grant the application and did so. The
applicants then applied to
the Supreme Court for an order in terms of section
103(4) of the Constitution. Farlam J granted that application and referred the
challenged provisions of the Act to this Court.

[4] The first question is whether the referral of these issues to this court in
terms of sections 103(3) and (4) is valid. Those
sections provide
that:

(3) If in any proceedings before a court referred to in subsection (1), the
presiding officer is of the opinion that it is in the
interest of justice to do
so, he or she may postpone the proceedings to enable the party who has alleged
that a relevant law or provision
is invalid, to apply to a provincial or local
division of the Supreme Court for relief in terms of subsection (4).

(4) If the provincial or local division hearing an application referred to in
subsection (3) is of the opinion that a decision regarding
the validity of the
law or provision is material to the adjudication of the matter before the court
referred to in subsection (1),
and that there is a reasonable prospect that the
relevant law or provision will be held to be invalid, and that it is in the
interest
of justice to do so, the provincial division or local division shall
--

(a) if the issue raised is within its jurisdiction, deal with such issue itself,
and if it is in the exclusive jurisdiction of the
Constitutional Court, refer it
to the Constitutional Court for its decision after making a finding on any
evidence which be relevant
to such issue; and
(b) suspend the proceedings before the court referred to in subsection (1)
pending the decision of the provincial or local division
or the Constitutional
Court, as the case may be.

In this case it is clear that all the provisions referred do fall within the
exclusive jurisdiction of the court. The second consideration
is whether it can
be said that the determination of the constitutionality of the referred
provisions ‘is material to the adjudication’
of the matter before
the Magistrates’ Court. The referred provisions read as
follows:

Section 6

(3) When any playing-cards, dice, balls, counters, tables, equipment,
gambling devices or other instruments or requisites used or
capable of being
used for playing any gambling game are found at any place or on the person of
anyone found at any place, it shall
be prima facie evidence in any
prosecution for a contravention of subsection (1) that the person in control or
in charge of such place permitted
the playing of such game at such place and
that any person found at such place was playing such game at such place and was
visiting
such place with the object of playing such game.

(4) If any policeman authorised to enter any place is wilfully prevented from
or obstructed or delayed in entering such place, the
person in control or in
charge of such place shall on being charged with permitting the playing of any
gambling game, be presumed,
until the contrary is proved, to have permitted the
playing of such gambling game at such place.

(5) Upon proof at the trial of any person charged with contravention of
subsection (1), that any gambling game was played or intended
to be played, it
shall be presumed, until the contrary is proved, that such game was played or
intended to be played for stakes.

(6) Any person supervising or directing or assisting at or acting as banker,
dealer, croupier or in any like capacity at the playing
of any gambling game at
any place and any person acting as porter, doorkeeper or servant or holding any
other office at any place
where any gambling game is played, shall be deemed to
be in control or in charge of such place.

(7) Any person found at any place where any such gambling game is played,
shall be deemed, until the contrary is proved, to be playing
such game at such
place and to be visiting such place with the object of playing such
game.

The charge levelled against the applicants by the prosecution is that they were
in control or in charge of a place where they permitted
the playing of gambling
games. The charge sheet reads as follows:

“the accused are guilty of contravening section 6(1) of Act 51 of 1965
read with sections 1, 6 and 8(d) of the said Act in
that upon or about or during
the period 07/12/94 to 12/12/94 and at or near Sea Point in the district of the
Cape the accused wrongfully
and unlawfully permitted the playing of a gambling
game at a place under their control or in their charge to wit Highstead Casino
Club.”

The charge sheet suggests, and the applicants argue, that the prosecution
intended relying on the evidentiary provisions contained
in section 6 which are
the subject of the present challenge. Each of the challenged provisions, except
section 6(7), may assist
the prosecution in establishing the offence with which
the accused are charged. However, section 6(7) only relates to the other
two
offences created by section 6(1): the offence of playing a gambling game, or
visiting a place where gambling games are played
with the intention of playing
such a game. As the applicants have not been charged with these offences, it
cannot be said that the
constitutionality of this provision could be of any
relevance whatsoever to the criminal proceedings pending against the applicants.
In the circumstances, I am of the view that the referral of section 6(7) was not
one within the terms of sections 103(3) and (4)
of the Constitution. However,
as the constitutionality of the other provisions referred may well be material
to the criminal proceedings
against the applicants, the referral of those
provisions is sound.

[5] The applicants argue that all the challenged provisions assist the
prosecution in various ways in proving the commission of the
offence with which
they have been charged. As the legal effect of the challenged provisions is
different, I shall consider the provisions
separately. First, I shall deal with
section 6(4); thereafter I shall deal separately with section 6(3), 6(5) and
6(6).

Section 6(4) of the Act

[6] The effect of this section (which is set out in full in paragraph 4) is
that, once the prosecution has established that a policeman
authorised to enter
a place was obstructed from entering such place and that the accused was in
charge of that place, the accused
will be presumed to have permitted the playing
of a gambling game at such place. “Place” is widely defined in
section
1 of the Act, as follows:

“place” means any place, whether or not it is a public place, and
includes any premises, building, dwelling, flat, room,
office, shop, structure,
vessel, aircraft or vehicle and any part of a place.

Accordingly, once the prosecution has established both that an authorised police
officer was obstructed from gaining entry to a place
and that the accused person
was in charge of it, the accused will have to show on a balance of probabilities
that he or she did not
permit the playing of a gambling game at the place. The
onus is placed upon the accused regardless of whether the accused played
any
role in the obstruction of the police officer. Even if the accused raises a
reasonable doubt as to whether he or she permitted
the playing of a gambling
game on the premises, a conviction will nevertheless follow.

[7] It is clear that this provision imposes a legal burden upon the accused.
Once a certain set of facts is established, an element
of the offence is
presumed to have been proved and the accused is required to produce evidence on
a preponderance of probabilities
to rebut that presumption. In a series of
cases, this Court has held that provisions of this nature, which impose a legal
burden
upon the accused which could result in the accused being convicted of an
offence despite the existence of a reasonable doubt as to
the guilt of the
accused, are in breach of section 25(3)(c) on the ground that they constitute a
breach of the presumption of innocence.
(See S v Zuma and Others[1995] ZACC 1; 1995 (2)
SA 642 (CC); 1995 (4) BCLR 401 (CC); S v Bhulwana; S v Gwadiso[1995] ZACC 11; 1996 (1)
SA 388 (CC); 1995 (12) BCLR 1579 (CC); S v Mbatha; S v Prinsloo[1996] ZACC 1; 1996 (2)
SA 464 (CC); 1996 (3) BCLR 293 (CC).) There are no relevant grounds upon which
the presumption contained in section 6(4) can be distinguished from the
presumptions
held to be in breach of section 25 in the cases
mentioned.

[8] It is quite clear therefore that section 6(4) is in breach of section 25(3).
The remaining question is whether it may be saved
in terms of section 33(1) of
the Constitution. That provision sanctions the limitation of a section 25(3)
right if such limitation
is, inter alia, reasonable, necessary and justifiable
in an open and democratic society based on freedom and equality. It is now
well
established that the test imposed by section 33(1) includes one of
proportionality. (S v Makwanyane and Another[1995] ZACC 3; 1995 (3) SA 391 (CC); 1995
(6) BCLR 665 (CC) at paragraph 104.) The court must measure the purpose, effects
and importance of the infringing legislation against the nature
and effect of
the infringement caused by the legislation.

[9] In this case, the State filed written evidence to establish the purpose and
effects of the Act. In his affidavit, Mr C L Fismer,
then Minister for General
Services, pointed to the negative effects on our society of unlicensed gambling
and the consequent need
to control such gambling. No evidence was produced as
to particular difficulties faced by the police or the Attorney-General in
investigating and prosecuting people for illegal gambling. No evidence was led
concerning the need for a sweeping presumption of
the sort contained in section
6(4) or for that matter any of the other presumptions. Nor was any convincing
evidence provided to
suggest that conventional policing tactics, such as, for
example, the use of plain-clothes police officers, could not provide the
necessary evidence for the prosecution of such offences. Evidence lodged to
meet the requirements of section 33 needs to persuade
us that the particular
provisions under attack are justifiable in terms of section 33, not merely
address the justifiability of the
overall legislative purpose sought to be
achieved by the statute.

[10] The purpose of section 6(4) does not weigh sufficiently heavily in the
balance to overcome the significant infringement of the
right to a fair trial
which it occasions. Section 6(4) is therefore inconsistent with the Constitution
and cannot be saved by section
33(1).

Section 6(3) of the
Act

[11] It is clear that section 6(3) uses different
language from section 6(4). (All these sections are set out in full at para 4).
The
finding of the identified items at a place “shall be prima facie
evidence” that the person in charge of such place permitted the
playing of a gambling game. This formulation is different to
the formulation
“shall be presumed, until the contrary is proved” which is used in
section 6(4). In argument, the applicants’
counsel submitted that
subsection (3) gave rise to an evidential burden. As a general rule in our law,
the formulation “shall
be prima facie evidence” does not
impose the burden of proof on the accused, but merely gives rise to an
evidential burden. (See Ex parte The Minister of Justice: In re Rex v
Jacobson & Levy1931 AD 466 at 478; R v Abel1948 (1) SA 654 (A)
at 661; S v Veldthuizen 1982 (3) SA 413 (A) at 416.) Although there does
not seem to have been any authoritative judicial statement of the effect of
section 6(3), the fact
that different language is used from that in section 6(4)
indicates that it does not impose a burden of proof upon the accused as
section
6(4) does. The provision requires that there be some evidence before the court
to discount the “prima facie evidence” that the person in
control of such place permitted the playing of a gambling game, and that people
present at such
place were playing such game or visiting the place intending to
play such game.

[12] It is well established in our law that, when an evidential burden is
imposed upon an accused person, there needs to be evidence
sufficient to give
rise to a reasonable doubt to prevent conviction. (See Pillay v Krishna and
Another1946 AD 946 at 952-3; S v Alex Carriers (Pty) Ltd en 'n Ander1985 (3) SA 79 (T) at 88 - 9.) As section 6(3) does not impose the burden of
proof upon the accused, it does not give rise to the possibility that
an accused
person may be convicted despite the existence of a reasonable doubt as to his or
her guilt. Accordingly, section 6(3)
cannot be held to be inconsistent with the
Constitution on the same grounds as sections 6(4). The question remains whether
it may
be challenged on other grounds.
[13] The trigger which brings the evidentiary provisions in section 6(3) into
operation is the proof by the prosecution that any
of the items it lists were
found at any place or on anyone’s person. Thus once the prosecution has
proved that a pack of playing
cards or a pair of dice have been found, there is
presumed to be prima facie evidence of certain elements of the offence.
As described above, section 6(1) creates three offences. The first prohibits a
person
in charge of premises permitting the playing of a gambling game. In
relation to this offence, the effect of section 6(3) is that
any person who is
in charge of a place where, for instance, a pack of playing cards has been
found, is assumed, unless a reasonable
doubt is raised, to have permitted the
playing of a gambling game in breach of section 6(1). The second offence
provides that a person
who plays a gambling game shall be guilty of an offence.
The effect of section 6(3) in relation to this offence is to assume, unless
a
reasonable doubt is raised, that any person who was at a place where a pack of
playing cards has been found played a gambling game.
The third offence provides
that a person visiting a place with the object of playing a gambling game shall
be guilty of a breach
of section 6(1). In relation to this offence, section
6(3) establishes that, once a pack of playing cards has been found at a place
where the accused was, the accused shall be assumed, unless a reasonable doubt
is raised, to have visited that place with the object
of playing a gambling
game.

[14] The effect of subsection (3) is extraordinarily sweeping. A person could
be charged in terms of section 6(1), and required
to produce evidence to
dislodge the effect of section 6(3), simply on the basis that a police officer
found a pack of cards in his
or her home. The relationship between the presumed
facts and the proven facts is, at best, only tenuous. It cannot be said that
a
person found in possession of a pack of playing cards or a pair of dice, in the
absence of any other evidence, is likely to have
been engaged in the conduct
prohibited by section 6(1). Nevertheless the effect of the subsection is that
any person found to be
in possession of such materials may be arrested,
prosecuted and required to produce evidence to avoid
conviction.

[15] Counsel for the applicants argued that section 6(3) was inconsistent with
the Constitution for two reasons. First, he argued
that the presumption
relieved the prosecution of the obligation of proving certain elements of the
offence and, as such, was in
breach of the presumption of innocence entrenched
in section 25(3)(c). Secondly that it was in breach of an accused’s right
to silence as entrenched in the same subsection of the Constitution in that it
indirectly compels an accused to give evidence. It
is clear from the language
of section 25(3) that the presumption of innocence and the right to silence are
incidents of the overarching
right to a fair trial which is enshrined in the
opening words of the subsection.

[16] In my view, it is not necessary in this case to consider whether the
provisions of section 6(3) constitute a breach of the presumption
of innocence
or the right to silence. Section 6(3) of the Act is an evidential device
created by the legislature which may result
in persons being charged with an
offence and put on their defence merely upon proof of a fact which itself is not
suggestive of any
criminal behaviour. The effect of such a device is that
innocent persons, against whom there is no evidence suggestive of criminal
conduct at all, may be charged, brought before a court and required to lead
evidence to assert their innocence. Such a provision
is in breach of the right
to a fair trial, entrenched in section 25(3). As Kentridge AJ noted in S v
Zuma, above, at para 16:

The right to a fair trial ... is broader than the list of specific rights set
out in paragraphs (a) to (j) of the subsection. It
embraces a concept of
substantive fairness which is not to be equated with what might have passed
muster in our criminal courts before
the Constitution came into force.

[17] It is not good enough to suggest, as counsel for the Attorney-General did
in argument, that no reasonable prosecutor would prosecute
persons merely on the
basis that they were in possession of a pack of playing cards. There is nothing
on the face of the statute
itself to require a prosecutor not to prefer charges
in such a case. Indeed the statute appears to relieve the prosecution of the
burden of proving any elements of the charge once one of the pieces of equipment
mentioned in section 6(3) has been found on or in
the same place as a person,
unless that person discharges the evidential burden imposed by the
subsection.

[18] The constitutional complaint lies in requiring innocent persons, against
whom there is no evidence suggestive of criminal conduct
at all, to come to
court to defend themselves. The fact that it may be relatively easy for such an
accused to do so does not deprive
the provision of its sting. Even if an
accused person is acquitted, there can be no doubt that the fact of standing
trial itself
has serious implications for an accused. It may cause damage to
the dignity and reputation of the accused. It will require the
accused to be
present at court which may be time-consuming and inconvenient and, if the
accused appoints a legal representative,
it may give rise to considerable
expense. All of these implications would of course be legitimate if the charge
is based on facts
which suggest criminality, but in terms of section 6(3) such a
requirement is effectively dispensed with by the
legislature.

[19] Section 6(3) is in breach, therefore, of section 25(3), the right to a fair
trial. It may also be in breach of section 11(1),
but it is not necessary to
consider that possibility further here. The question arises whether it may be
saved in terms of section
33. In order to be so, the court would have to be
persuaded that the provision was reasonable, justifiable and necessary in an
open
and democratic society. Although there may be circumstances where inherent
difficulties of proof would mean that a similar provision
would be held to be a
justifiable limitation in terms of section 33, that is not the case here. The
evidence lodged by the State
(referred to in para 9) does not assist here
either. No cogent reason was advanced as to why it was necessary for an
evidential burden
of this considerable scope to be employed, there being no
explanation as to why the necessary evidence of the commission of the statutory
offences created by section 6(1) of the Act could not be obtained through
well-tried police methods. In the circumstances, the provision
cannot be saved
by section 33(1).

[20] In argument counsel for the Attorney-General argued that, if a portion of
section 6(3) were severed from the provision, the
remainder would not be
inconsistent with the Constitution. He proposed that, after severance, the
provision read as follows:

When any ... gambling devices ... are found at any place or on the person of
anyone found at any place, it shall be prima facie evidence in any
prosecution for a contravention of subsection (1) that the person in control or
in charge of such place permitted
the playing of such game at such
place.

‘Gambling device’ is defined in section 1 of the Act as
follows:

“gambling device” means any equipment or mechanical,
electro-mechanical or electronic device, component or machine, used
remotely or
directly in connection with a gambling game and which brings about the result of
a wager by determining win or loss.

The first consideration in a severability enquiry is to determine whether the
proposed severance will result in a provision which
is consistent with the
Constitution. I cannot accept that the proposed severance will do so. Although
by deleting many of the listed
items the scope of the definition will be
narrowed, the effect of the evidential burden is still sweeping. This is
because the definition
of “place” which is extremely broad remains,
as does the definition of gambling device, which is also broad. With these
broad definitions, it may well be that, even after the surgery proposed by the
state, the provision will result in the prosecution
of a person despite there
being no evidence suggestive of criminality. In my view, this Court should be
reluctant to embark upon
an exercise of severance unless it is persuaded that
the result will give rise to no constitutional complaint. I have not been so
satisfied in this case.

Section 6(5)

[21] On its face section 6(5), like section 6(4), appears to impose a burden of
proof upon the accused: once the prosecution has
established that a gambling
game was played or intended to be played, the accused will be required to
persuade the court, on a balance
of probabilities, that such game was not played
for stakes. However, upon further analysis the precise effect of section 6(5)
seems
less certain. In particular, I have not been persuaded that section 6(5)
may ever result in the conviction of an accused despite
the existence of a
reasonable doubt as to his or her guilt.
[22] There is no definition of “stakes” in the Act.
“Stake” is defined in the Concise Oxford English Dictionary
as:

a sum of money etc. wagered on an event, esp. deposited with a stakeholder;
an interest or concern, esp. financial; money offered
as a prize esp, in a
horserace....

The effect of section 6(5) therefore appears to require the accused, once the
prosecution has established that a gambling game was
played, to prove on a
balance of probabilities that the game played was not one played for money or
value. However, the definition
of gambling game in section 1 of the Act is as
follows:

“gambling game” means any game, irrespective of
whether or not the result thereof is determined by chance, played with
playing
cards, dice or gambling devices for money, property, cheques, credit or anything
of value (other than an opportunity to play
a further game), including, without
derogating from the generality of the foregoing, roulette, bingo, twenty-one,
black-jack, chemin
de fer and baccarat.

This definition makes it clear that a gambling game is one which is played for
money or anything of value. Once, therefore, the
prosecution has proved that a
gambling game has been played, it will have established that the game was played
for a stake. It is
not clear, therefore, what the purpose or effect of section
6(5) is.

[23] It may well be that section 6(5) is a remnant of the statute in an earlier
form. Prior to the amendment of the Act by Act 144
of 1992 section 6(1) read as
follows:

Subject to the provisions of subsection (2), no person shall permit the
playing of any game of chance for stakes at any place under
his control or in
his charge and no person shall play any such game at any place or visit any
place with the object of playing such
game.

There was no definition of “stakes” in the Act at that time either.
Section 6(5) then provided that

Upon proof at the trial of any person charged with contravention of
subsection (1), that any game of chance was played or intended
to be played, it
shall be presumed, until the contrary is proved, that such game was played or
intended to be played for stakes.

“Game of chance” was defined in section 1 of the Act as
follows:

“game of chance” includes any game which the Minister may from
time to time by notice in the Gazette declare to be a game of
chance.

It is clear then that before the 1992 amendments, the offence created by section
6(1) contemplated proof of a game of chance and
proof that it was played for
stakes. Upon proof of the former fact, section 6(5) imposed the burden of
proving the latter upon the
accused.

[24] Whatever its history, section 6(5) remains in the Act. The question for
this Court is whether it is inconsistent with the Constitution
or not. The
principle upon which this Court has held that the imposition of a burden of
proof upon the accused to be in breach of
the Constitution in the past, is that
it may result in the conviction of an accused despite the existence of a
reasonable doubt.
It is not clear to me that section 6(5) has this effect. The
burden of proof only arises once the prosecution has proved the existence
of a
gambling game. In such circumstances, should an accused person subsequently
raise a reasonable doubt as to whether the game
was played for stakes or not,
but not establish the absence of a stake upon a preponderance of probabilities,
the evidence led by
the accused may well have the effect of dislodging the proof
beyond reasonable doubt that a gambling game was played and therefore
the
accused may avoid conviction.

[25] Accordingly, the applicants have not persuaded me that section 6(5) may
result in the conviction of an accused despite the existence
of a reasonable
doubt as to the guilt of the accused. Nor could the applicants point to any
other constitutional right infringed
by section 6(5). In the circumstances, the
applicants have not succeeded in identifying any constitutional basis for a
challenge
to section 6(5). The fact that section 6(5) appears to be ineffective
does not automatically give rise to constitutional complaint
in terms of section
25(3), as was argued in this case.

Section
6(6)

[26] Mr Marcus, for the applicants, argued that the effect of section 6(6) was
to create an irrebuttable presumption. He argued
that the approach adopted by
this Court in S v Zuma, above, S v Bhulwana; S v Gwadiso,
above, and S v Mbatha; S v Prinsloo, above, in respect of rebuttable
presumptions should also apply to irrebuttable presumptions.

[27] The first matter to be considered is whether section 6(6) of the Act
creates an irrebuttable presumption. On a simple reading
of the text, it is
clear that a person who is a banker, dealer, croupier or acts in a similar
capacity, or the porter, doorkeeper
or servant, or otherwise an officeholder at
a place where a gambling game is being played, shall be deemed to have been in
control
or in charge of such place. It also appears from a reading of section
6(1) that being in charge or control of the place in question
is one of the
elements of one of the statutory offences created by section 6(1). The
remaining elements of that offence are first,
that a gambling game has been
played at that place, and that the person in charge permitted the playing of
such game.

[28] What is the legal effect of section 6(6)? The subsection needs to be
considered in its context. It is the only provision in
section 6 which uses the
formulation “deemed”. In our law, the phrase “deemed”
can have a variety of effects;
which effect it has in any particular statutory
provision depends upon the context and history of the particular section. (See
R v Haffejee and Another1945 AD 345; S v Rosenthal1980 (1) SA 65
(A).)

[29] Sections 6(4) and 6(5) use the familiar formulation for creating rebuttable
presumptions of law: “until the contrary has
been proved”. (See
Ex parte The Minister of Justice: in re Rex v Jacobson and Levy, above;
S v Bhulwana; S v Gwadiso, above, at para 7.) In S v de Sa
1982(3) SA 941 (A), the Appellate Division was concerned with the legal effect
of a portion of section 7(2) of the Act (now repealed)
which provided that

the person in control or charge of any place specified in any notice under ss
(1) at which any pin-table, machine, contrivance or
instrument contemplated in
such notice is found, shall be presumed to have permitted the playing of games
of chance for stakes at
such place....

Rabie ACJ noted that:

It is to be noted, furthermore, that presumptions are created in several
sections of the Act, and that in some of these sections (viz
ss 2(2), 2(3),
6(4), 6(5), 6(7) and the second half of section 7(2)(a)) it is expressly stated
that the presumption shall apply “until
the contrary is proved”,
whereas in others (viz s 6(6), the first half of s 7(2)(a) , and s 7(2)(b))
these qualifying words
do not appear. This would seem to show that the
Legislature intended to distinguish between presumptions which can be rebutted
and
presumptions which cannot be rebutted -- unless, of course, one were to hold
that the use of the words in some sections, or parts
thereof, and the absence
thereof in others is merely the result of careless draftmanship. (At p 954 D -
F.)

Although “presumed” was used in section 7(2) and
“deemed” is used in section 6(6), the reasoning adopted
by Rabie ACJ
seems equally applicable to section 6(6). Adopting that reasoning in
interpreting section 6(6) leads to the unavoidable
conclusion that section 6(6)
contains an irrebuttable presumption.

[30] The legal character of an irrebuttable presumption is not that it is a rule
of evidence, but that it is a rule of substantive
law. (See Schmidt
Bewysreg 3de uitg at 132-3; Hoffmann and Zeffertt, The South African
Law of Evidence 4th ed at 530; Attorney General v Odendaal1982
Botswana LR 194 at 226-7.) Section 6(6) has the effect that once a person has
been proved by the prosecution to have been a banker, dealer, croupier,
porter,
doorkeeper, servant or other person holding office at a place where a gambling
game is played, the state need not show that
such person was in charge of the
place where gambling occurred. In effect, section 6(6) operates as a
definition. Parliament might
have provided in section 6(1) that any person
acting as croupier, banker, at the playing of any gambling game, or employed as
a porter,
doorkeeper or servant at any place where a gambling game is played
would commit an offence if he or she permitted the playing of
such game at such
place. There could be no attack on such a provision in terms of section 25(3)
of the Constitution: the prosecution
would have the burden of proving all the
elements of the offence. Parliament in fact chose in section 6(1) to describe
the offence
by reference to persons in control of the place where any gambling
game was played. What section 6(6) does is to provide an extensive
definition
of that category of persons. It is to be read merely as a definitions section,
not as one which imposes a burden of proof
upon the accused. The effect of the
provision is that the state will, however, have to prove beyond reasonable doubt
the other elements
of the statutory offence: namely that a gambling game was
played and that the accused permitted the playing of the
game.

[31] In the circumstances, the provision cannot be challenged on the same
grounds as sections 6(4) and 6(7), as it does not have
the same effect. There
is no possibility that section 6(6) will result in the conviction of an accused
despite a reasonable doubt
as to his or her guilt in relation to an element of
the offence.

[32] It may be in certain circumstances that the elements necessary to establish
a statutory or common law offence could be challenged
on constitutional grounds.
For example, a statutory offence which criminalised behaviour which chapter 3
specifically protects, such
as the right to freedom of movement or assembly,
could well be the subject of a successful constitutional challenge. In
addition,
section 11(1) of the Constitution provides that

Every person shall have the right to freedom and security of the person which
shall include the right not to be detained without trial.

It may be that, in certain circumstances, the elements of a particular criminal
offence are so invasive of freedom that the offence
could be challenged as an
unjustifiable infringement of section 11. It is not necessary for the purposes
of this case to decide
whether such a challenge could be sustained for it is
clear that there is no basis for such a challenge in this case.
[33] It may be thought that the inclusion of “servants” in the list
of persons deemed by section 6(6) to be in charge
of the premises was a
legislative over-reach and that the word “servant” should be severed
from the provision. Such
a view would be based on the proposition that it will
be rare that a servant will in fact be in control of premises, and that it
will
be rare that a servant will have any control of whether or not a gambling game
has been played on the premises. I cannot accept
this proposition. First, in
the context of this subsection the word “servant” may include a wide
range of people, not
only those performing menial tasks. For those who are
performing such tasks, the elements of the offence make it clear that the
prosecution must establish that a person in charge of the premises
permitted the playing of a gambling game. In addition, it has long been
recognised by our courts that, unless there are clear and convincing
indications
to the contrary in a statute, the prosecution will be required to prove the
necessary mens rea on the part of the accused person. (See S v
Arenstein1964 (1) SA 361 (A) at 365; S v De Blom1977 (3) SA 513 (A)
at 532.) In the circumstances, the legislature has effectively established an
offence which prohibits a servant at a place from
permitting the playing of
gambling games at that place. It cannot be said that such provision offends any
of the fundamental rights
contained in the Constitution.

[34] In summary, then, sections 6(3) and 6(4) have been found to be inconsistent
with the provisions of the Constitution. In the
circumstances, the Court must
declare those provisions to be invalid. No convincing reasons were suggested
for suspending the effect
of an order of invalidity in terms of the proviso to
section 98(5) of the Constitution.

[35] The Court must consider whether it is appropriate to exercise its
discretion in terms of section 98(6)(a). In terms of that
section, the effect
of the declaration of invalidity will not render any act done or permitted in
terms of the provisions, prior
to the date of our judgment, invalid unless this
Court decides in the interests of justice and good government, to order
otherwise.
In previous cases, the Court has taken the view that the interests
of justice generally require that litigants who have been successful
before this
Court should obtain the relief they seek (S v Bhulwana; S v Gwadiso,
above, at para 32). In this case, the applicants will be assisted simply by a
prospective declaration of invalidity. That is all
they
sought.

[36] Nevertheless there may be a considerable number of people who have already
been convicted as a result of reliance upon sections
6(3) and 6(4) of the Act,
but whose cases have not yet been finalised, because an appeal or review is
pending. If our order is purely
prospective, they would obtain no relief from it
at all, although their constitutional rights will have been impaired. In S v
Bhulwana; S v Gwadiso, above, at para 32, we held that we should exercise
our powers under section 98(6)(a) of the Constitution prudently to avoid
disruption
in the criminal justice system. (See also S v Zuma and
Others, above, at para 43.) On the other hand, we should also, where
possible, seek to ensure that people may rely on the rights afforded
to them in
terms of the Constitution. In previous cases, we have exercised our discretion
in terms of section 98(6)(a) to rule that
a declaration of invalidity applies to
all cases which have not been finalised at the date of our order. (See S v
Mhlungu; S v Bhulwana; S v Gwadiso, above; S v Mbatha; S v Prinsloo ,
above.) In those cases, the order was made to assist litigants
before this Court. However, there seems to be no reason why such an order
should not also be made in this case. It would afford relief to people not
before this Court whose rights have been infringed and
it would cause no
significant disruption in the criminal justice process. In the circumstances, I
am persuaded, that it would be
appropriate to make the order of invalidity
applicable, not only prospectively, but also to all cases in which, as at the
date of
the judgment in this matter, finality has not been
reached.

[37] Neither the applicants nor the Attorney-General made any submissions
regarding costs, nor do there appear to be any reasons
why a costs order should
be made.

Order

[38] The following order is accordingly made:

1. It is declared that subsections (3) and (4) of section 6 of the Gambling
Act, 51 of 1965 are inconsistent with the Republic of
South Africa Constitution
Act, 200 of 1993 and are, with effect from the date of this judgment, declared
to be invalid and of no
force and effect.

2. In terms of section 98(6)(a) of the Constitution, it is ordered that the
declaration of invalidity in paragraph 1 shall invalidate
any application of the
invalid sections in any criminal trial in which the verdict of the trial court
was entered after the Constitution
came into force, and in which, as at the date
of this judgment, either an appeal or review is pending or the time for the
noting
of the appeal has not yet expired.

3. The matter of S v Scagell and others is referred back to the Cape
Provincial Division to be dealt with in accordance with this
judgment.